421 F.

2d 830

UNITED STATES of America ex rel. Norman A. GREEN,

Appellant,
v.
James F. MARONEY, Warden, State Correctional Institution,
Pittsburgh, Pennsylvania.
No. 18015.

United States Court of Appeals Third Circuit.

Submitted on Briefs Dec. 5, 1969.
Decided Jan. 15, 1970.

Norman A. Green, pro se.

Carol Mary Los, Asst. Dist. Atty., Pittsburgh, Pa. (Robert W. Duggan,
Dist. Atty., of Allegheny County, Robert L. Campbell, Asst. Dist. Atty.,
Pittsburgh, Pa., on the brief), for appellee.
Before GANEY, SEITZ and ALDISERT, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.

Appellant seeks a reversal of a judgment of the district court dismissing his

petition for a writ of habeas corpus without hearing. Appellant is serving a
prison term for armed robbery and receiving stolen goods pursuant to a verdict
of a Pennsylvania court after a trial to the court.

In state post-conviction proceedings this appellant claimed a violation of his

constitutional rights in that he was denied his rights to file post-trial motions
and an appeal because appointed counsel refused to represent him after
sentencing. The state court granted appellant leave to file a motion for a new
trial nunc pro tunc and appointed counsel for him. A motion for a new trial was
thereafter filed and denied. The decision was affirmed by the Superior Court
and the Supreme Court of Pennsylvania denied allocatur. The appellant then
filed this habeas corpus action.

The appellant's asserted grievance is that the state court in granting him the
right to file a motion for a new trial did not also grant him the right to file a
motion in arrest of judgment. The district court ruled that the appellant has not
exhausted his state remedies because appellant's own papers state 'that the
question of his right to a motion in arrest of judgment was not presented to the
state court and was not raised on appeal.'

Although the district court denied relief on the nonexhaustion ground, it also
stated that the appellant did not indicate how the relief the state court granted,
viz., right to file motion for new trial, did not encompass all the relief possible
under a motion in arrest of judgment. Appellant suggests the following
prejudice. The timely filing of motion in arrest would have deferred the original
sentencing and the trial judge would not have seen appellant's prior criminal
record until he had impartially considered the merits of the motion for a new
trial. He goes on to say that because leave to filed a motion in arrest was not
included in the post-conviction relief granted, appellant's motion for a new trial
was not objectively considered because the same judge who sentenced
appellant also denied his new trial motion.

Appellant's argument, as structured, lacks merit. Had the motion in arrest been
granted nunc pro tunc by the state court the prejudice appellant asserts would
still have been present because the original trial and sentencing judge also
decided the nunc pro tunc motion for a new trial. What appellant is really
arguing is that he was denied due process because the judge who denied the
motion for a new trial was biased by having previously examined appellant's
criminal record at the conclusion of the trial. He is thereby contending that due
process requires that a different judge must pass on the motion for a new trial
in these circumstances.

We do not now decide whether appellant's constitutional rights were violated

because we think it evident that appellant is really attacking state judicial
practice and it is singularly appropriate that such matters be first considered by
the state court. Since appellant has not demonstrated that he has exhausted his
state remedies, we hold that the district court correctly denied the petition.

The judgment of the district court will be affirmed.